A growing number of scholars think “religious liberty” is a bad
idea.The unfairness objection is that singling out religion for special
protection is unjust to comparable nonreligious conceptions of the good.The distraction
objection asserts that religious liberty is a misleading lens: oppression sometimes
occurs along religious lines, but the underlying conflicts often are not really
about religious difference.Both
objections are sound, but under certain conditions religious liberty should nonetheless
be regarded as a right.Law is
inevitably crude.The state cannot
possibly recognize each individual’s unique identity-constituting
attachments.It can, at best, protect
broad classes of ends that many people share.“Religion” is such a class.Where
it is an important marker of identity for many people, it is an appropriate
category of protection.

That's the argument of my newly published article in the International Journal of Constitutional Law, here. The same issue of the journal has a critical response by Prof. Gita Stopler, here, with a rejoinder by me, here.